ML111400287

Tennessee Valley Authority'S Answer Opposing Petitioners Motion to Permit a Consolidated Reply (Corrected)

ML111400287
Person / Time
Site:	Watts Bar
Issue date:	05/20/2011
From:	Bessette P, Chandler C, Frantz S, Sutton K, Vance S, Vigluicci E Morgan, Morgan, Lewis & Bockius, LLP, Tennessee Valley Authority
To:	NRC/OCM
SECY RAS
References
RAS 20343, 50-391-OL, ASLBP 09-893-01-OL-BD01
Download: ML111400287 (8)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-391-OL TENNESSEE VALLEY AUTHORITY )

) May 16, 2011 (Watts Bar Nuclear Plant Unit 2) )

)

_______________________________________

)

In the Matter of )

) Docket Nos. 50-014-COL & 50-015-COL TENNESSEE VALLEY AUTHORITY )

) May 16, 2011 (Bellefonte Nuclear Power Plant, )

Units 3 and 4) )

)

TENNESSEE VALLEY AUTHORITYS ANSWER OPPOSING PETITIONERS MOTION TO PERMIT A CONSOLIDATED REPLY I. INTRODUCTION Beginning on April 14, 2011, and continuing through April 21, 2011, the Petitioners filed with the U.S. Nuclear Regulatory Commission (NRC or Commission), on the dockets of several licensing proceedings, an Emergency Petition to Suspend Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (Petition).1 Tennessee Valley Authority (TVA) 1 See, e.g., Docket Nos.52-027, 52-028, Emergency Petition to Suspend All Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (original version dated Apr. 14-18, 2011; corrected version dated Apr.

18, 2011; served Apr. 14-21, 2011); Decl. of Dr. Arjun Makhijani in Support of Emergency Petition to Suspend All Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (Apr. 19, 2011) (Makhijani Declaration), available at ADAMS Accession No. ML111091154. All citations to the Petition in this DB1/ 67305234.1

filed its Answer in opposition to the Petition with the Commission pursuant to 10 C.F.R.

§ 2.323(c) and the Commissioners Order dated April 19, 2011.

With motions filed on May 6, 2011 in the Watts Bar Unit 2 proceeding and May 12, 2011 in the Bellefonte Units 3 and 4 proceeding, Petitioners now seek another bite at the apple, asking that the Commission modify its scheduling Order dated April 19, 2011 to allow submission of a Reply by Petitioners. The Order already provided the Petitioners with an opportunity to supplement their petition by April 21, 2011, but allowed only for answers to the petition or briefs amicus curiae to be filed by May 2, 2011, with no provision for any further pleadings. As discussed below, the Petitioners Motion should be denied, because there are no compelling circumstances to authorize yet further briefing from the Petitioners.

II. ARGUMENT Petitioners contend that further pleading should be authorized for two reasons:

(1) because the events at Fukushima raise unprecedented technical and legal issues and unprecedented safety and environmental concerns; and (2) because Petitioners could not have anticipated the factual and legal arguments made in the Responses, which allegedly mischaracterize the Petition and misinterpret the governing law.2 Petitioners first argument does not articulate a plausible basis for authorizing a Reply. The events at Fukushima are clearly not new, compelling circumstances that provide a basis for filing a Reply, but rather they were known to Petitioners before they filed their original Petitionfor that matter, these events formed the basis for that Petition. In addition, Petitioners have ignored substantial legal Answer are to the corrected version of the Petition served on April 19, 2011, in Docket Nos.52-027 and 52-028.

2 Motion at 5. The pages of the Motion are not numbered. As such, references are based upon the frame of the

.pdf file submitted by Petitioners.

DB1/ 67305234.1

precedent regarding the standards to be applied to petitions to suspend proceedings, such as decisions issued after similar petitions were filed following the events of September 11, 2001.3 In their second argument, Petitioners contend that because they did not anticipate certain arguments in response to their Petition, they should be granted the opportunity to correct their apparent lack of foresight and respond to all the specific objections in the Answers to the Petition.4 This assertion evades Petitioners burden, which is to show that there are compelling circumstances, such as where the moving party demonstrates that it could not have reasonably anticipated the arguments to which it seeks leave to reply.5 Petitioners cannot simply point to specific arguments that they did not anticipate as proof that they have met the standard. Rather, they must show that they could not have reasonably anticipated these arguments.6 Petitioners are faced with a high hurdle, because the compelling circumstances requirement is generally understood to signal an extraordinary action [that] should not be used as an opportunity to reargue facts and rationales which were (or should have been) discussed earlier.7 Moreover, Petitioners have themselves mischaracterized the facts, asserting that their Petition does not amount to a motion to suspend licensing proceedings, but rather is somehow procedurally limited to a Petition to suspend licensing decisions. This assertion is, however, belied by the plain language of the Petition. In addition to the specific request to [s]uspend all 3

See Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-02-23, 56 NRC 230, 236-37 (2002); Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-28, 54 NRC 393, 398-400 (2001); Duke Energy Corp. (McGuire Nuclear Station, Units 1 &

2; Catawba Nuclear Station, Units 1 & 2), CLI-01-27, 54 NRC 385, 389-91 (2001); Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 377-78 (2001).

4 See Motion at 5-6 5

10 C.F.R. § 2.323(c) (emphasis added). Even if Petitioners do show compelling circumstances, then their request may, but need not be granted. Id.

6 Taken to its logical conclusion, Petitioners argument would permit a finding of compelling circumstances in any request for leave to reply, with a plea that the opposing partys answer included an argument that the moving party did not anticipate.

7 See Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004) (discussing changes to 10 C.F.R. § 2.323(e), which uses the same compelling circumstances language as Section 2.323(c)).

DB1/ 67305234.1

decisions regarding issuance of construction permits, new reactor licenses, COLs, ESPs, license renewals, or standardized design certification,8 the Petition requests that the Commission

[s]uspend all proceedings with respect to hearings or opportunities for public comment, on any reactor-related or spent fuel pool-related issues that have been identified for investigation in the Task Forces Charter of April 1, 20119 and [s]uspend all decisions and proceedings regarding all licensing and related rulemaking proceedings.10 Petitioners contend that by mischaracterizing the core request in the Emergency Petition as a request to suspend proceedings under 10 C.F.R. Part 2, the responses somehow unfairly argue that the Petition is subject to a host of procedural regulations which are simply irrelevant, and with which Petitioners did not comply.11 However, the Petition itself requests that the Commission suspend ongoing licensing proceedings. Furthermore, petitions to suspend proceedings have historically been treated by the Commission as motions under 10 C.F.R. § 2.323.12 Therefore, it should have been reasonably anticipated by the Petitioners that applicants would raise objections to the Petition under the applicable provisions in 10 C.F.R. Part 2 governing licensing proceedings.

Petitioners also should have anticipated that responses would be filed that point out the weaknesses in the arguments proffered by Dr. Makhijani. The responses directly deal with the issues raised by Dr. Makhijani; there is nothing unusual in the responses that warrants a reply.

8 Petition at 1.

9 Id. at 2 (emphasis added).

10 Id. at 3 (emphasis added).

11 Motion at 5-6.

12 AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 476 (2008); Diablo Canyon, CLI-02-23, 56 NRC at 237 (citing 10 C.F.R. § 2.730, which now is 10 C.F.R. § 2.323).

DB1/ 67305234.1

Finally, Petitioners argue that they could not have anticipated legal arguments made by their opponents regarding NEPAs requirement for consideration of new and significant information in NRC licensing decisions.13 However, a movant is expected to anticipate potential arguments and lengthy responses and to frame their opening pleadings accordingly.14 In this case, the Petition itself raised claims regarding NEPA case law on new and significant information. Therefore, Petitioners should have reasonably anticipated that applicants would dispute Petitioners interpretation of that case law.

13 Motion at 6.

14 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-8, 33 NRC 461, 469 (1991).

DB1/ 67305234.1

III. CONCLUSION Petitioners have failed to establish compelling circumstances to justify authorizing a Reply. Accordingly, for all of these reasons, the Motion should be denied.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Paul M. Bessette, Esq.

Steven P. Frantz, Esq.

Kathryn M. Sutton, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-3000 Fax: 202-739-3001 E mail: pbessette@morganlewis.com E-mail: sfrantz@morganlewis.com E mail: ksutton@morganlewis.com Edward J. Vigluicci, Esq.

Christopher C. Chandler, Esq.

Scott A. Vance, Esq.

Office of General Counsel Tennessee Valley Authority 400 W. Summit Hill Drive, WT 6A-K Knoxville, TN 37902 Phone: 865-632-7317 Fax: 865-632-6147 E-mail: ejvigluicci@tva.gov E-mail: ccchandler0@tva.gov Email: savance@tva.gov Counsel for TVA Dated in Washington, DC this 16th day of May 2011 DB1/ 67305234.1

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-391-OL TENNESSEE VALLEY AUTHORITY )

) May 16, 2011 (Watts Bar Nuclear Plant Unit 2) )

)

CERTIFICATE OF SERVICE I hereby certify that, on May 16, 2011, a copy of Tennessee Valley Authoritys Answer Opposing Petitioners Motion to Permit a Consolidated Reply was served by the Electronic Information Exchange on the following recipients:

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop: O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Lawrence G. McDade, Chair Edward Williamson, Esq.

Administrative Judge E-mail: elw2@nrc.gov E-mail: lgm1@nrc.gov David Roth, Esq.

E-mail: david.roth@nrc.gov Paul B. Abramson Andrea Jones, Esq.

Administrative Judge E-mail: andrea.jones@nrc.gov E-mail: pba@nrc.gov Michael Dreher, Esq.

E-mail: michael.dreher@nrc.gov Gary S. Arnold Brian P. Newell, Paralegal Administrative Judge E-mail: bpn1@nrc.gov E-mail: gxa1@nrc.gov OGC Mail Center Wen Bu, Law Clerk E-mail: ogcmailcenter@nrc.gov E-mail: wxb3@nrc.gov DB1/ 67111402 1

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16C1 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 OCAA Mail Center Hearing Docket E-mail: ocaamail@nrc.gov E-mail: hearingdocket@nrc.gov Diane Curran, Esq.

Representative of Southern Alliance for Clean Energy (SACE)

Harmon, Curran, Spielberg & Eisenberg, L.L.P.

1726 M Street N.W., Suite 600 Washington, D.C. 20036 E-mail: dcurran@harmoncurran.com Signed (electronically) by Paul M. Bessette Paul M. Bessette, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-3000 Fax: 202-739-3001 E-mail: pbessette@morganlewis.com 2